Matters of the 'M' word

The California Supreme Court has just a few months to decide whether the state constitution permits one particular group to have a monopoly on the word "marriage." After years of litigation, the issue of same-sex marriage is now squarely before the high court. Now that legal briefs have been submitted and the lively oral argument is over, the justices have a weighty task ahead as they tackle one of the major civil rights issues of our time. They face some substantial hurdles, especially if they wish to justify restricting marriage to heterosexuals.

Many people, including a couple of the justices it seems, wish this controversial and divisive issue would go away. During the oral argument, Justice Ming Chin strongly suggested that gays and lesbians should be satisfied that in California, unlike in most states in the country, they could receive virtually all the state benefits of heterosexual marriage via a registered domestic partnership. Why make such a fuss over a word?

It is easy to understand how many people, even people who generally favor the equal treatment of gays and lesbians, viscerally believe that the term "marriage" means a legal union of one man with one woman. That has been our experience, our collective understanding. Marriage between two men or two women is a strange concept to many of us. After all, we grew up with Ward and June or Ozzie and Harriet, not Adam and Steve, as our model married couples.

The legal issues before the court pose difficult questions, however. For starters, how can the state limit the meaning of marriage to heterosexual couples without violating the equal protection of our laws? The attorney general's office argued that tradition justifies this disparate treatment. Yet, this argument has to ring hollow as few institutions have evolved more than the institution of marriage. Women were once seen as lacking any identity apart from that of their husbands. Many states restricted marriage to a union of two people of the same race, based on the notion of what a traditional marriage should look like. The tradition argument was forcefully rejected by the California Supreme Court in 1948 when California became the first state in the country to strike down its laws prohibiting interracial marriage. The justices need to acknowledge that there is something legally peculiar about telling a group that its members can have the benefits of marriage provided that they agree to call it something else.

To be sure, most state courts that have considered the issue have determined that marriage can be kept as a heterosexual-only institution. In 2006 a majority of the judges on New York's high court came to this conclusion, finding that the legislature could determine rationally that children are better off being raised in heterosexual unions, and that heterosexuals need the special incentives offered by marriage to enter into the institution. But the California Supreme Court justices seemed to find these arguments weak and even offensive during oral argument, and rightly so in a state where our courts – including our Supreme Court – and our legislators have made clear that California's gay and lesbian relationships are entitled to respect and equal treatment.

Lawyers for the state went to great lengths to avoid any such arguments. Ironically, it is because California has conferred virtually all of the state benefits and obligations of heterosexual marriage to gay and lesbian couples under a different name that lawyers for the state were so hard-pressed to justify the denial of the term "marriage" to homosexual couples.

California's legal landscape is further complicated by the passage of Proposition 22 in 2000. There is much debate about the reach of this proposition. It primarily dealt with recognition of out-of-state marriages and was in reaction to steps taken by Hawaii to legalize same-sex unions. Whatever the meaning of Proposition 22, the California justices have to contend with the thorny issue of who decides issues of legal equality.

About the writer:

• Lawrence C. Levine, a law professor at the University of Pacific McGeorge School of Law, is an authority on legal issues involving sexual orientation.